"The basis of our political system is the right of the people to make and to alter their constitutions of government." - George Washington

Wednesday, May 18, 2016

The President and the Governor, part 2

This page is intended to be a supplement to the page titled, "The President and the Governor", which was published May 9, 2016.

The second half of this page discusses five incidents of adult men walking into locker rooms that are meant to be used by women and girls.

Four of the five locker rooms were at public high schools, and the fifth incident was at a public swimming pool. A sixth incident involved a man walking into a women's bathroom in a restaurant. That incident took place on May 13, 2016.

I have included quotes from five news stories about those five incidents. Every quoted news story includes a link to their web page. There are other links included to news stories about some of those incidents.

Summary of Part 1 of this series

The Civil Rights Division of the U.S. Department of Justice sent a letter to the Governor of North Carolina.

This letter said that they would ask a court for an order that would prevent the State of North Carolina from implementing and enforcing a law that had been passed overwhelmingly by the North Carolina Legislature and then quickly signed by their Governor.

There is, of course, no guarantee that the court would issue such an order, but that division of that department made the threat anyway.

The Administrative Procedures Act

Some of the information in this new section came from a radio interview I heard May 17, 2016. Radio host Hugh Hewitt (@hughhewitt on Twitter) interviewed Scott Pruitt (@AGScottPruitt on Twitter), the Attorney General of the state of Oklahoma.

During that interview, Hugh also asked the OK Attorney General about the Bathroom Bills.

Thank you, Hugh and Scott, for a very informative interview. Both of you inspired me to write this new blog page.

Legislative history of the Administrative Procedures Act (A.P.A.)

This is a law that was passed by the 79th session of the U.S. Congress in 1946 and signed into law by President Harry Truman.

When any legislation that is passed by Congress becomes a law, by the signature of the President, it is added to the existing set of laws, and it is then referred to by its' place among other laws, called the U.S. Code. The Administrative Procedures Act has been added to Title 5 and is named 5 U.S.C. 551. That means that you can find this law in Title 5,Chapter 551 of the U.S. Code.

Title 5 is about the organization of the U.S. Government and its' employees.

Title 5, Part 1 is about U.S. Government agencies.

Title 5, Part 1, Chapter 5 is the Administrative Procedure of these agencies.

Title 5, Part 1, Chapter 5, Subchapter II is also the administrative procedure of these agencies.

The United States Code is the codification by subject matter of the general and permanent laws of the United States. It is divided by broad
subjects into 53 titles and published by the Office of the Law Revision Counsel of the U.S. House of Representatives. The U.S. Code was first published in 1926. The next main edition was published in 1934, and subsequent main editions have been published every six years since 1934. In between editions, annual cumulative supplements are published in order to present the most current information.

This law is mentioned by the websites of many U.S. Government agencies, including

How this law applies

These are two paragraphs of the three-paragraph summary of the law on the website of the U.S. Environmental Protection Agency. The link to that page is in the list of U.S. Government agencies that mentions this law.

The Administrative Procedure Act (A.P.A.) governs the process by which federal agencies develop and issue regulations. It includes requirements for publishing notices of proposed and final rulemaking in the Federal Register, and provides opportunities for the public to comment on notices of proposed rulemaking. The A.P.A. requires most rules to have a 30-day delayed effective date.

In addition to setting forth rulemaking procedures, the A.P.A. addresses other agency actions such as issuance of policy statements, licenses, and permits. It also provides standards for judicial review if a person has been adversely affected or aggrieved by an agency action.

Please remember. The A.P.A. is not a set of voluntary guidelines for the administrative procedures of Federal Government agencies. It is a law, It was legislation that was passed by Congress in 1946 and signed by President Truman. It is a law, and it can be enforced by United States courts, including the U.S. Supreme Court, if it is necessary to do so.

This is the first sentence of the May 4th letter that was sent to the Governor of North Carolina. The link to that letter was provided earlier on this page.

This letter is to inform you that the Department of Justice has determined that, as a result of compliance with and implementation of North Carolina House Bill 2 ("H.B.2"), both you and the State of North Carolina (the "State")are in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq. ("Title VII").

Section by section

This law has nine sections, numbered 551 through 559.

Section 551 is a list of the definitions that are used by the other sections in this law.

Section 551(1) defines an "agency" as

... each authority of the Government of the United States, whether or not it is within or subject to review by another agency.

This definition specifically excludes Congress (Section 551(1)(A)), U.S. Courts (Section 551(1)(B)), "the governments of the territories or possessions of the United States" (Section 551(1)(C)), and other entities (Sections 551(1)(D) through 551(1)(H).

The U.S. Department of Justice and their Civil Rights Division is included in this definition.

Section 551(6) defines an "order" as

... the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing.

The first paragraph of the letter that was sent from the Civil Rights Division of the U.S. Department of Justice said,

... that the Department of Justice has determined that, as a result of compliance with and implementation of North Carolina House Bill 2 ("H.B.2"), both you and the State of North Carolina (the "State")are in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq. ("Title VII").

That "determination" is an order under the definition in Section 551(6).

The sixth paragraph of that same letter contains three sentences. This is the second sentence of that paragraph.

When the Attorney General of the United States has a reasonable basis to believe that a state or person has engaged in a pattern or practice of discrimination in violation of Title VII, she may apply to the appropriate court for an order that will ensure compliance with Title VII.

There is a definition of a "person" in Section 551(2) of the A.P.A. The sovereign State of North Carolina fits the definition of a "party" in Section 551(3) of the A.P.A.

There are seven definitions of a "sanction" in Section 551(10) of the A.P.A., but the only sanction that is mentioned in the May 4th letter from the Department of Justice to the Governor is the possibility that the Attorney General "... may apply to the appropriate court for an order that will ensure compliance with Title VII."

Fortunately for the State of North Carolina, not every application to a court for an order, even an "appropriate" court, results in the order that is requested. Some judges have the discretion to apply their own sane ideas of public policy whenever a legal decision is requested.

The Civil Rights Division of the U.S. Department of Justice followed an illegal procedure, according to this May 16, 2016 article in CNS News. This is the first paragraph, which finishes with a link to the A.P.A. on the same National Archives website that I have been quoting from.

The Obama Administration has done it again. In an effort to strip school children of their modesty and morals, Obama has issued new instructions governing use of restrooms, locker rooms, and showers in every government-funded school in the country. And, in predictably lawless fashion, Obama has violated not one, but two federal laws. First, he took a 1972 law, Title IX, which was designed to prevent sex discrimination in education, and says that as of Friday, the word “sex” in the statute does not mean the “sex” you were born with. It means whatever “gender” you feel like on a given day. And, if that was not bad enough, the manner in which the Obama Administration acted was to legislate by letter, not just usurping legislative power, but by
violating another federal law — the Administrative Procedure Act.

An Appeals Court case that mentioned the Administrative Procedures Act

The Obama administration was barred by a judge from enforcing a directive that U.S. public schools allow transgender students to use bathrooms and locker rooms according to their gender identity.

A federal judge in Fort Worth, Texas, on Sunday sided with Texas and 12 other states that argued the administration’s policy usurps local control and threatens students’ safety and privacy.

Note: The wording of the first paragraph is inaccurate. The minute that a Federal judge makes a ruling, it goes into effect unless that judge "stays" his own ruling. Any of the lawyers who are affected by the ruling can make a motion for the judge to do so, and the judge has the power to grant this motion, but this ruling was not "stayed", so it has gone into effect immediately. This means that the Obama administration is barred from enforcing their directive regarding school bathrooms and locker rooms.

A 2015 5th Circuit Appeals Court case, which I found using a specialized Google search page, was decided on the grounds that the U.S. Government did not follow the procedures in the Administrative Procedures Act.

The subject of that case was immigration, specifically the Deferred Action for Parents of Americans and Lawful Permanent Residents program ("DAPA")

This is a quote from the case. All of the links, including the footnotes, are clickable.

The United States[1]
appeals a preliminary injunction, pending trial, forbidding implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents program ("DAPA"). Twenty-six states (the
"states"[2]) challenged DAPA under the Administrative Procedure Act ("APA") and the Take Care Clause of the Constitution;[3] in an impressive and thorough Memorandum Opinion and Order issued February 16, 2015, the district court enjoined the program on the ground
that the states are likely to succeed on their claim that DAPA is subject to the APA's procedural requirements. Texas v. United States, 86 F.Supp.3d 591, 677 (S.D.Tex.2015).[4]

The government appealed and moved to stay the injunction pending resolution of the merits. After extensive briefing and more than two hours of oral argument, a motions panel denied the stay after
determining that the appeal was unlikely to succeed on its merits. Texas v. United States, 787 F.3d 733, 743 (5th Cir.2015). Reviewing the district court's order for abuse of discretion, we affirm
the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for an injunction.[5]

Notice that in this case, the U.S. Government, which is one of the parties that is involved in this case, did make a motion to stay the injunction, but "a motions panel" (a group of judges) denied the stay, which means that this ruling will go into effect immediately.

There are reasons why men and woman need separate locker rooms

There are also reasons why men and women should be kept out of each other's facilities.

A Greensburg man charged with posing as a woman so he could photograph high school cheerleaders was ordered yesterday to stand trial.

Robert Domasky, a 48-year-old newspaper delivery man who goes by the name Kelly Dawn Hullenbaugh, was charged with stalking, forgery, fraud, identity theft, tampering with public records, and trespassing in September.

Police are trying to locate a man who walked naked into a high school girls' locker room in South San Francisco on Monday evening.

At about 5:30 p.m., a man wearing no clothes went into a locker room at South San Francisco High School and exposed himself to five girls who were changing after cheerleading practice, police Sgt. Bruce McPhillips said.

Witnesses told police the suspect made eye contact with the girls and then left without saying anything, McPhillips said. He did not touch anyone, and no one was injured.

As of this morning, the suspect had not been identified.

He was described as a white man around 40 years old and 5 feet 10 inches tall with an average build. He is balding with short brown hair, and has a potbelly, police said.

Anyone with information about the incident is asked to call South San Francisco police at (650) 877-8900 or the anonymous tip line at (650) 952-2244.

A Mount Vernon man found sitting naked in a high school girls locker room was sentenced June 24 to a month in jail and ordered to keep his clothes on in public.

Snohomish County Superior Court Judge Thomas Wynne also ordered Brett Linert to undergo sexual deviancy treatment. Linert is banned from stepping foot on any school properties.

Marysville police began investigating Linert in October after a janitor at Marysville Getchell High School reported that he found Linert sitting nude in the girls' locker room. Linert apologized to the janitor, pulled on his clothes and walked off.

The janitor followed him outside and copied down the man's license plate number. That led Marysville detectives to the Mount Vernon man.

Seattle Parks and Recreation is facing a first-of-a-kind challenge to gender bathroom rules. A man undressed in a women's locker room, citing a new state rule that allows people to choose a bathroom based on gender identity.

It was a busy time at Evans Pool around 5:30pm Monday February 8. The pool was open for lap swim. According to Seattle Parks and Recreation, a man wearing board shorts entered the women's
locker room and took off his shirt. Women alerted staff, who told the man to leave, but he said "the law has changed and I have a right to be here."

"Really bizarre," MaryAnne Sato said. "I can't imagine why they would want to do that anyway!"

Sato uses the locker room a few times a week, but she says this is a first for her. It's also a first for Seattle Parks and Recreation. Employees report that the man made no verbal or physical attempt to identify as a woman, yet he still cited a new rule that allows bathroom choice based on gender identification.

MaryAnne Sato, who wondered why the pool staff asked the man to leave, was obviously never sexually abused and is just as obviously not the mother of a young girl. If she had been sexually abused, or if she was a young girl's mother, she would not need to guess why a man was asked to leave a women's locker room.

Members of a Washington state pool are finding out the hard way that transgender laws come with a host of unpleasant consequences.

Women at Seattle Parks and Recreation were shocked on Feb. 8 when a man walked into their locker room and took off his shirt. Their protests were refuted when the man cited regulations instituted in December allowing access to restrooms and locker rooms based on gender identity.

“The law has changed and I have a right to be here,” the man said, KREM 2 reported Wednesday.

The man then returned while girls were getting ready for swimming lessons. Staff did not call police to handle the situation.

"The law has changed and I have a right to be here," the man said.

He's almost correct about that. The Civil Rights Division of the U.S. Justice Department doesn't have any power to change the law. That power has been given exclusively to Congress by the U.S. Constitution, as I stated in Part 1 of this essay.

However, the May 4th letter from the Civil Rights Division to the Governor of North Carolina, which was discussed extensively in Part 1 of this series, is attempting to force him to do something that is against the wishes of the people of his own state, as represented by his state legislature. That letter is trying to force him to not implement the law that they passed and he signed. Their letter even claims that they will ask for a court order to force this governor to violate the will of his people.

Please notice the horrifying events in the fourth paragraph of the story. "The man then returned while girls were getting ready for swimming lessons." Girls were undressing, and this man was in the same room with them and also undressing.

At around 5:30 p.m. on Feb. 8, an adult went into the locker room to change. Takami says that at “no time did he verbally ‘identify’ as female,” nor did he request to be treated as transgender.

At the time, a local youth swim team was using the facilities. Young girls and some of their parents “became alarmed” that the male was changing in the female locker room and alerted the front desk staff. Staff members then “asked the man to leave and offered the availability of a family changing room.”

He did not accept the offer.

After his swim, he “again entered the women’s locker room to change.” Front desk staff once again asked him to leave “and he eventually did.”

Perhaps complicating matters, a witness who contacted KIRO Radio indicated this male was wearing men’s clothing as he entered the locker room.

Public policy

As a matter of public policy, when someone who looks like a man and is wearing man's clothing wants to enter a room where women and girls are undressing, he should be denied that opportunity, for one very good reason.

It should be the public policy of the United States and for every state in the United States to deny a man the opportunity to sexually abuse women and girls. Every good public policy follows common-sense ideas about privacy and the safety of vulnerable people, including children.

The public policy of the Chicago public schools

Chicago Public Schools announced on Monday that students and staff must be granted unfettered access to intimate school facilities based on their chosen gender identity.

Put concretely, boys now have the “right” to undress in the girls locker room before gym class so long as they say they would feel more comfortable doing so. Kids and teens have many things to worry about as they grow into adulthood and get an education. But having to deal with people of the opposite sex in their bathrooms and showers shouldn’t be one of them.

This latest front in the bathroom wars proves that same-sex marriage was merely the start, not end, of the left’s LGBT agenda. As demonstrated by enforcement actions by the Department of Justice, private lawsuits, and court decisions, the radical left is using government power to coerce children into pledging allegiance to a radical new gender ideology over and above their right to privacy, safety, and religious freedom.

"As demonstrated by enforcement actions by the Department of Justice, private lawsuits, and court decisions ..."

The fact that the Department of Justice is taking legal action in courts, and making private lawsuits easier due to other actions taken by that department, means that Attorney General Loretta Lynch and her boss, President Obama both, approve of a policy that is destructive to American society.

Their personal policies, however, cannot be forced upon a state like North Carolina if their own Attorney General fights and wins the battle against this policy in whatever courtroom is chosen by the Department of Justice.

Common sense ideas should determine public policy

Some women also sexually abuse children. This is a link to my essay Reasons to home-school your child, which has a clickable list of teachers and other public school employees who were arrested (some were convicted) of having sex with their students. That page currently has five sequels which list many other reasons to avoid having your son or daughter enrolled in a public school.

We knew this was coming and we told you this was coming, yet many people still refuse to believe us.

Even as I write these words, different cities in America are considering dangerous and irrational laws that impose unfair and potentially dangerous burdens on the vast majority of citizens, all in
name of helping a tiny number of deeply confused individuals. When will we learn?

To put it simply, you are guaranteeing trouble when you effectively make public bathrooms and locker rooms gender neutral. It is an experiment in social madness, and it is completely without
justification, no matter how much we care about men and women who struggle with gender identity issues.

"To put it simply, you are guaranteeing trouble when you effectively make public bathrooms and locker rooms gender neutral."

If public policy for any state, or for the United States, allows naked teenaged boys and girls to be in the same room together, you are also guaranteeing an increase in teenage pregnancies.

Contestants at a pregnant teen beauty contest.
Few of these girls will have a secure future.

A rational public policy standard is shared by Joe Walsh, who represented the 8th Congressional District in Illinois in the U.S. Congress for one term. Link to the April 11, 2016 blog page about this subject.

As federal agencies are taking aim at cutting funding to states that pass so-called “bathroom bills,” White House press secretary Josh Earnest invoked the civil rights battles of past generations in states that passed or are considering a similar law.

“State’s like Tennessee and to a certain extent North Carolina and Mississippi have a long history — even over the last couple of generations — of working through questions of civil rights. President Obama has talked on a number of occasions about the important progress that our country has made with regard to civil rights,” Earnest said. “This is a good illustration that the fight for civil rights is not over.”

What? So now a transgender or even a man who dresses as a transgender and enters a girl’s bathroom is a “fight for civil rights.” Are you kidding me? This insanity needs to stop!

Yes, it does need to stop, with laws passed and enforced that make it a misdemeanor for any person to enter a bathroom meant for use by the opposite sex. If there is any question of the gender identity, this question should be answered in court by a medical laboratory that has examined chromosomes, not by a psychiatrist whose scientific knowledge is open to its' own unanswered questions.